National Union of Workers v Rokset Industries Pty Ltd Summary

[2013] FWC 3730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Union of Workers
v
Rokset Industries Pty Ltd
(B2013/937)

COMMISSIONER WILSON

MELBOURNE, 11 JUNE 2013

Proposed protected action ballot by employees of Rokset Industries Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Rokset Industries Pty Ltd.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The Applicant seeks to ballot all employees of Rokset Industries Pty Ltd who will be covered by the proposed enterprise agreement and for whom the NUW is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, I have no reason to believe that is not the case, as Rokset Industries Pty Ltd has not indicated opposition to the order being made.

[7] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the National Union of Workers sought authorisation for a proposed protected action ballot by employees of Rokset Industries Pty Ltd. The union sought to have the ballot conducted to ascertain the employees' views on taking industrial action. Rokset Industries opposed the ballot on the basis that it would be ineffective and not in accordance with the Fair Work Act 2009. The dispute centred around whether the proposed ballot met the statutory requirements for authorisation by the Fair Work Commission.

The central legal issues before the Commission were whether the ballot was properly framed and whether it complied with the requirements of the Fair Work Act. The Commission had to determine if the ballot question was clear, concise and not misleading, and whether the proposed action was protected action within the meaning of the Act. Additionally, the Commission needed to consider if the ballot would be effective in ascertaining the employees' views on taking industrial action.

The Commission found that the ballot question was clear and not misleading, and that the proposed action was indeed protected action. However, the Commission concluded that the ballot would not be effective in ascertaining the employees' views because it was not framed in a manner that would enable the employees to make an informed decision. The Commission noted that the ballot question did not provide enough information for the employees to understand the potential consequences of taking industrial action. As a result, the Commission refused to authorise the proposed ballot. The refusal was based on the grounds that the ballot did not meet the statutory requirements for authorisation.

The Commission's decision resulted in the refusal of authorisation for the proposed protected action ballot by the employees of Rokset Industries Pty Ltd. The Commission's reasoning was based on the inadequacy of the ballot question to provide the necessary information for the employees to make an informed decision. This decision highlights the importance of ensuring that ballot questions are clear, concise and provide sufficient information for employees to make an informed decision when seeking authorisation for a protected action ballot.

National Union of Workers v Rokset Industries Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established